INNOCENT MAN PLEADED GUILTY TO LESSER OFFENCE TO ESCAPE ALMOST CERTAIN CONVICTION AT HANDS OF CHARLES SMITH; JUSTICE SYSTEM'S "DIRTY LITTLE SECRET";

We know from the Goudge Inquiry that several innocent individuals pleaded guilty to crimes they did not commit - or did not contest certain charges - in order to avoid what their lawyer's described as the almost certain risk of being convicted of murder by the lethal testimony of Dr. Charles Smith;

Globe and Mail Justice Reporter Kirk Makin focused on the issue of lawyer's who help clients plead guilty to offenses they may not be guilty of for collateral reasons in a story which appears today under the heading: "Reopens troubling debate about role lawyers play in arranging guilty pleas for clients who may be not guilty."

"In light of overwhelming evidence from then-respected pathologist Charles Smith, lawyer Robert Graydon knew that his client, Richard Brant, would be a fool to pass up a Crown offer of just six months behind bars for the shaking death of his two-month-old baby, Dustin," Makin's story begins.

"However, there was one serious obstacle to Mr. Brant accepting the plea bargain. The mourning father insisted he had done absolutely nothing to cause Dustin's death - in direct contradiction of findings by the now-discredited Dr. Smith," the story continues;

"After several anguished conversations with Mr. Graydon - now an Ontario Court judge - Mr. Brant said he would concede to having jostled Dustin accidentally during a physical struggle with his wife, according to an affidavit filed in the Ontario Court of Appeal.

By asking the appeal court last week to reopen and overturn his 10-year-old conviction, Mr. Brant also reopened a troubling debate about the role lawyers play in arranging guilty pleas for clients who may be innocent. In Mr. Brant's case, it is very hard to see how his lawyer could have known whether his client was innocent, but he did know the strength of the evidence against him. Judge Graydon declined to be interviewed on the topic.

"I think it's a dirty little secret," University of Windsor law professor David Tanovich, a veteran defence lawyer, said of the role of defence counsel in such cases. "Very few people talk about it."

Michael Code, a defence lawyer who teaches ethics at the University of Toronto law school, said lawyers cannot be party to a client they know is innocent pleading guilty, yet they often feel a tremendous temptation to help a client procure a light sentence.

"It is the hidden underbelly of the justice system, and it does need to be talked about and dragged into the open," Prof. Code said.

Experts say two categories of defendant engage in these so-called pleas of convenience. The first are those who face testimony from a virtually unassailable Crown witness, such as Dr. Smith. The second are those who are denied bail pending a trial.

"They don't want to spend the time in the cramped and overcrowded cells," Prof. Tanovich said. "They want to plead guilty because they can get out right away with time served."

Andras Schreck, a Toronto defence lawyer, said many defendants jump at the chance to end proceedings and go home. "How many people are going to say no to that?" he asked. "I would think that it probably happens hundreds of times a day."

Mr. Schreck said the solution to these pleas of convenience is simple: "Just don't deny bail as often."

For an accused person facing a serious charge, the worry of being found guilty after a trial provides a powerful inducement to accept a bargain-basement offer from the Crown.

Typically, defence lawyers convey these offers using "a whole bunch of nods and winks" in order to skirt ethical boundaries, Prof. Code said: "It won't be a proper discussion. It will be a plea of convenience in disguise."

"Personally, I never do it," Mr. Schreck said. "But some other lawyers will say: 'Look, you really should plead guilty. I'm not going to act for you if you don't.' "

Notwithstanding two significant high-court decisions that brushed over the issue, the courts have remained strangely silent about the role of lawyers.

In a 2003 case - R. v. Taillefer and Duguay - the Supreme Court set aside a guilty plea in a murder case in which one of the defendants pleaded guilty to manslaughter just to end the legal proceedings. "Yet remarkably, nothing was said about whether this was ethical or not," Prof. Code said.

In a 1995 ruling in the case of R. v. S. K., the Ontario Court of Appeal stressed that defence counsel must be careful not to "mislead" the courts about plea bargains, but it went no further.

Mr. Schreck said the role of Crown prosecutors also cries out for scrutiny. "It happens far too often, where the Crown realizes their case is weak and, instead of withdrawing the charge, that they try to induce a guilty plea," he said. "If you do have a case, don't go offering a ridiculously lenient sentence."

In Mr. Brant's case, his ultimate six-month sentence for aggravated assault was a far cry from the six- to eight-year manslaughter sentence he would likely have gotten had he lost at trial.

In an affidavit to the Court of Appeal last week, Mr. Brant recalled: "For many months, Mr. Graydon told me it was in my best interests to plead guilty. He said he would tell the court that Dustin's injuries had been caused during a struggle with Mary on the Friday evening. He urged me to accept the offer."

In fact, Mr. Brant emphasized, he did nothing that could have caused Dustin's death.

"There are no easy answers to this," Mr. Schreck said. "But right now, we are all turning a blind eye to the problem - which is not a good starting point.""

Harold Levy...hlevy15@gmail.com;